PLJ 2022 Lahore 993
Civil Procedure Code, 1908 (V of 1908)--
----S. 24-A(2) & 115--High Court Rules & Orders, Para 6, Chapter XIII, Vol.-I--Transfer of suit from one Court to another Court--Administrative order--No notice for parvee was issued to parties or their counsel by transferee Court--Suit was dismissed for non-producing of evidence--Appeal--Dismissed--Challenge to--Case was transferred under administrative order without fixing a date to appear before transferee Court and no information in this regard was imparted to parties--Impugned order, dismissing suit for want of evidence, it is harsh in nature, especially when after transfer of case from one Court to other Court, petitioner was not informed, so as to enable him to produce his evidence and even he was not warned to face consequences in case of his failure to produce complete set of evidence--High Court while exercising revisional jurisdiction has ample power to correct illegality and irregularity committed by Courts below--Revision petition allowed.
[Pp. 996 & 997] A, B, C & D
2020 SCMR 300 & PLD 1975 Lahore 879 ref.
Mr. Muhammad Akmal Khan, Advocate for Petitioner.
Mr. Muzaffar Abbas Khan Ghadhi, Advocate for Respondents.
Date of hearing: 12.1.2022.
PLJ 2022 Lahore 993
Present: Shahid Bilal Hassan, J.
NOOR ZAMAN--Petitioner
versus
Mst. GULLAN (deceased) through L.Rs.--Respondents
C.R. No. 70819 of 2021, decided on 12.1.2022.
Order
Succinctly, the petitioner instituted a suit for specific performance of contract with permanent injunction against the deceased respondent Mst. Gullan, who entered appearance and submitted her written statement. She also filed a separate suit for declaration with consequential relief, which was contested by the present petitioner. Both the suits were consolidated and consolidated issues were framed. However, on 15.02.2021, the learned trial Court closed the right of the petitioner to lead evidence and dismissed his suit for want of evidence on the said date. The petitioner being aggrieved of the same preferred an appeal but remained unsuccessful vide impugned judgment and decree dated 04.03.2021; hence, the instant revision petition.
2. Heard.
3. It is an established and admitted fact on record that when under administrative order the case was transferred from one Court to the other Court, no notice parvee was issued by the transferee Court to the parties or their counsel, as is evident from the order dated 05.01.2021, which is reproduced as under:-
ORDER
05.01.2021
Present: Advocates are observing strike today.
Received through transfer. Be Registered.
Today, instant case was fixed for evidence of plaintiff. Evidence of plaintiff is not available. Due to strike, suit is adjourned, absolute last opportunity is granted to the plaintiff to produce complete evidence.
Adjourned till 15.02.2021 for evidence of plaintiff.
Announced:
05.01.2021 Muhammad Adeel Asghar Mian
Civil Judge Class-II, Sillanwali
Instead of passing such an order, giving absolute last opportunity, the learned trial Court ought to have issued the notices parvee to the parties, because the case was transferred under administrative order and not under section 24-A(2) of the Code of Civil Procedure, 1908 where the parties are directed to appear before the learned transferee Court and if party fails to appear then penal order can be passed against such party; however, here the case is not as such, rather otherwise, as highlighted above. Para 6, Chapter XIII, Volume I of High Court Rules and Orders provides:
“6. When a case is transferred by administrative order from one Court to another, the Presiding Officer of the Court from which it has been transferred shall be responsible for informing the parties regarding the transfer, and of the date on which they should appear before the Court to which case has been transferred. The District Judge passing the order of transfer shall see that the records are sent to the Court concerned and parties informed of the date fixed with the least possible delay. When a case is transferred by judicial order the Court passing the order should fix a date on which the parties should attend the Court to which the case is transferred.”
However, in the present case, none of the requirements enunciated in the above para 6 of the Chapter XIII, Volume I of the High Court Rules and Orders has been adhered to because nothing is on record to suggest that the Court from which the case was transferred ever informed the parties to appear before the transferee Court on such and such date, rather it has manifested from the record that the case was transferred under administrative order without fixing a date to appear before the transferee Court and no information in this regard was imparted to the parties; thus, it was required by the learned transferee Court to issue notice parvee to the parties and their counsel, fixing a date to appear before it but no such exercise has been done. In such scenario, what to speak of passing a penal order without putting the petitioner on caution as has been held by the Apex Court of the country in a judgment reported as Moon Enterprises CNG Station, Rawalpindi v. Sui Northern Gas Pipelines Limited through General Manager, Rawalpindi and another (2020 SCMR 300); thus, the said precedent being on different facts is not attracted in the instant case and the ratio of the same has wrongly been appreciated by the learned subordinate Courts.
This Court while dilating upon a case of almost identical facts, wherein the defendant was proceeded against ex-parte by the Court where the suit was pending and was transferred to some other Court under administrative order and without issuing notice to him he was proceeded against ex-parte, reported as Azizullah Khan and 4 others v. Arshad Hussain and 2 others (PLD 1975 Lahore 879) has held:
‘According to Section 24-A(2), C.P.C. and the relevant rule of High Court Rules and Orders, as referred to above, if the order of the learned District Judge transferring the case had been passed in the presence of the absentee defendants or they had been intimated in accordance with that order, then in case of their absence before the transferee Court they could be lawfully proceeded against ex-parte. If the absentee defendant can join the proceedings at the subsequent stage even after ex-parte order has been passed against him, as also held in Messrs Landhi Industrial Trading Estages Ltd., Karachi v. Government of West Pakistan through Excise and Taxation Officer 1970 SCMR 251, then how it can be presumed that in the absence of any intimation duly furnished to him with regard to transfer of the case from one Court to another he can be proceeded against ex-parte simply on the basis of ex-parte order already passed against him. His right to join future proceedings implies that after the transfer of the case from the Court where such proceedings are pending if the same have not been transferred in his presence or without intimation to him, then he cannot be proceeded against ex-parte unless duly served upon with regard to transfer of the case to the successor Court. In this view of the matter the contention of the learned counsel for the respondents,
that since there is no clear provision in the amended law to issue notice to the parties after the case has been received on transfer, therefore, said notice cannot be issued, has no substance. As laid down in 1970 SCMR 251, the rules of procedure as laid down in the Code are principally intended for advancing justice and not for retarding it on bare technicalities.’
4. Pursuant to the above discussion it can safely be held that the impugned order, dismissing the suit for want of evidence, it is harsh in nature, especially when after transfer of the case from one Court to the other Court, the petitioner was not informed, so as to enable him to produce his evidence and even he was not warned to face the consequences in case of his failure to produce complete set of evidence; thus, the impugned order, judgment and decrees cannot be allowed to hold field further, because it is requirement of law that cases should be decided on merits and technicalities should be avoided. Moreover, this Court while exercising revisional jurisdiction under section 115 of the Code of Civil Procedure, 1908, has ample power to correct the illegality and irregularity committed by the learned Courts below.
5. The crux of the discussion above is that the revision petition in hand is allowed, impugned order, judgment and decrees are set aside and case is remanded to the learned trial Court which will be deemed to be pending at the stage when the impugned order dated 15.02.2021 was passed with a direction to afford two clear opportunities to the petitioner for production of his complete set of evidence. The parties are directed to appear before the learned trial Court on 31.01.2022, positively.
(Y.A.) Petition allowed
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